Obesity remains a serious health problem and it is no secret that many people want to lose weight. Behavioral economists typically argue that “nudges” help individuals with various decisionmaking flaws to live longer, healthier, and better lives. In an article in the new issue of Regulation, Michael L. Marlow discusses how nudging by government differs from nudging by markets, and explains why market nudging is the more promising avenue for helping citizens to lose weight.

Two long wars, chronic deficits, the financial crisis, the costly drug war, the growth of executive power under Presidents Bush and Obama, and the revelations about NSA abuses, have given rise to a growing libertarian movement in our country – with a greater focus on individual liberty and less government power. David Boaz’s newly released The Libertarian Mind is a comprehensive guide to the history, philosophy, and growth of the libertarian movement, with incisive analyses of today’s most pressing issues and policies.

Search form

Tag: due process

This blogpost was coauthored by Cato legal associate Trevor Burrus, who also worked on the brief discussed below.

Rent control is literally a textbook example of bad economic policy. Economics textbooks often use it as an example of how price ceilings create shortages, poor quality goods, and under-the-table dealings. A 1992 survey revealed that 93 percent of economists believe that rent control laws reduce both the quality and quantity of housing.

As expected, therefore, New York City’s Rent Stabilization Law—the most (in)famous in the country—has led to precisely these effects: housing is scarce, apartment buildings are dilapidated because owners can’t charge enough to fix them, and housing costs have only increased (in part because costs are transferred to non-rent mechanisms such as “non-refundable deposits”). Yet the RSL persists, benefiting those grandfathered individuals who rent at lower rates but hurting the city as a whole.

Harmon v. Kimmel challenges New York’s law on the grounds that it is an arbitrary and unsupportable regulation amounting to an uncompensated taking that violates the Fifth Amendment.

Jim Harmon’s family owns and lives in a five-story brownstone in the Central Park West Historical District. The Harmons inherited the building—and along with it three rent-controlled tenants. Those tenants have occupied apartments in the building for a combined total of 91 years at a rate 59 percent below market. In their lawsuit, however, the Harmons face many unfriendly precedents that have given states free reign to regulate property, to the point that it is occupied on an essentially permanent basis while surviving Fifth Amendment scrutiny.

One way to challenge some of these laws is to argue they are so arbitrary and poorly justified that they violate the Fourteenth Amendment’s Due Process Clause. Because this is an especially difficult type of challenge to bring, Cato joined the Pacific Legal Foundation and the Small Property Owners of San Francisco Institute on a brief supporting the Harmons’ request that the Supreme Court review lower-court rulings against them. Although the Court has ruled that the Takings Clause does not permit challenges based on claims that the alleged taking fails to “substantially advance legitimate state interests,” the Due Process Clause is an independent textual provision.

We thus clarify the relationship between property rights and due process, arguing that a law which advances no legitimate governmental purpose can be challenged under the Due Process Clause. To hold otherwise would be to deny property owners any meaningful avenue for defending their property from onerous and irrational regulations.

Challenges to Florida’s unconstitutional drug laws continue to gain momentum. Following a successful federal district court challenge to the constitutionality of state statutes lacking a mens rea requirement (mental culpability, rather than, for example, incidental possession), people convicted under them have come forward en masse to ask Florida courts to reexamine their convictions.

As described in the background to a previous brief in the case of Florida Dept. of Corrections v. Shelton, the district court held that these sorts of laws offend the constitutional guarantee of due process. Florida’s Supreme Court has now consolidated over 40 appeals resulting from that federal court decision (which itself is now on appeal). Cato has once again joined the National Association of Criminal Defense Lawyers, Florida Association of Criminal Defense Lawyers, ACLU, Drug Policy Alliance, Calvert Institute for Policy Research, Libertarian Law Council, and 38 law professors on a brief supporting the rights of persons convicted under the “strict liability” statutes.

We urge the Florida Supreme Court to follow the federal district court’s lead and strike down laws prohibiting the sale, possession, or delivery of illicit substances without requiring mental culpability. That court now has the opportunity to reverse these unwarranted convictions and purge a nationally singular stain on civil liberties.

The name of the case is Florida v. Adkins.

Thanks to legal associate Paul Jossey for his assistance with this brief and blogpost.

The administration argues that suspected al Qaida terrorists – even U.S. citizens – can be targeted for assassination because they either (a) pose an imminent threat or (b) are part of an enemy army; and (c) other governments are unwilling or unable to act. Although the Fifth Amendment ensures that persons not be denied due process, it’s unclear what process is “due” – especially when the person is a citizen. For example, a U.S. citizen who threatens hostages with imminent loss of life can be killed by law enforcement authorities. Similarly, an American who serves in a foreign army against which the United States is at war is plainly a legitimate target.

Moreover, under the Nationality Act, a citizen can lose his citizenship if he intends to do so (although intent can be inferred by actions) and he either (a) declares allegiance to a foreign state, (b) serves in a post requiring such a declaration, (c) serves in armed forces in combat with the United States, or (d) serves as an officer or NCO in the armed forces of a foreign state.

Still, the killing of Awlaki is a close legal call. On balance, it’s probably unlawful. The imminent-threat contention isn’t credible. To my knowledge, no one has identified a threat that is imminent (meaning: about to happen). The part-of-an-enemy-army claim and the loss-of-citizenship argument raise several questions: First, is the Nationality Act itself constitutional? The Constitution establishes criteria for citizenship. Stripping someone of citizenship effectively changes those criteria, and Congress may not have that power. Second, even if the Nationality Act is constitutional, does al Qaida qualify as a foreign state for purposes of the Act? Are al Qaida agents equivalent to soldiers engaged in combat with the United States? Third, even if the Nationality Act might apply in Awlaki’s case, how do we know that he triggered the provisions of the Act? Can the administration simply assert that he met one of the tests for loss of citizenship, or must there be some threshold process to make that determination?

Finally, the Authorization for the Use of Military Force sanctioned force against those involved in the 9/11 tragedy. Awlaki, although not directly involved, probably qualified as part of an “associated force”; but actions that might self-evidently be lawful if Awlaki were actively fighting on a battlefield are less so when he’s allegedly plotting attacks from Yemen.

All told, when U.S. citizens are targeted, I’d be more comfortable with somewhat more process – not a trial before an Article III court, of course, but perhaps the equivalent of an assassination warrant that required a non-executive-branch body with relevant expertise to certify sufficient cause. Anything less risks disrespect for the Constitution, which could have regrettable implications in other areas. The separation of powers doctrine, if it means anything, stands for the proposition that citizens cannot be killed on command of the executive branch alone, without regard to the Fourth and Fifth Amendments. Naturally, exceptions are justified for truly imminent threats. If I were convinced that involvement of another branch might result in Awlaki-types escaping punishment, I’d be more willing to invoke “emergency” powers – similar to hot pursuit – but not in this case.

In my Encyclopedia Britannica column this week, I take a look at “the responsibility of judges to strike down laws, regulations, and executive and legislative actions that exceed the authorized powers of government, violate individual rights, or fail to adhere to the rules of due process.”

The column might have been more timely last summer, when Judge Andrew Napolitano concluded one of his Freedom Watch programs on the Fox Business Channel by hailing four federal judges who had courageously and correctly struck down state and federal laws:

Judge Martin L. C. Feldman, who blocked President Obama’s moratorium on oil drilling in the Gulf of Mexico;

That was a good summer for judicial protection of liberty. But as I note, there have been more examples this year, reminding us of James Madison’s predictions that independent judges would be “an impenetrable bulwark against every assumption of power in the legislative or executive.”

My column at the Washington Examiner (and Reason.com) this week uses the collapse of the Dominique Strauss-Kahn case to argue against the “perp walk,” which has become a form of pretrial punishment and a way for spotlight-hungry prosecutors to grab attention—whether the ‘perp’ turns out to be guilty or not:

Back in May, when New York law enforcement paraded DSK before the cameras, hands cuffed behind his back, the French were outraged. “Incredibly brutal, violent and cruel,” France’s former justice minister gasped.

Irritating as it might be to admit it, the French have a point. The “perp walk”—in which suspects are ritually displayed to the media, trussed up like a hunter’s kill—has become common practice among prosecutors. But it’s a practice any country devoted to the rule of law should reject.

Of course, DSK isn’t the most sympathetic victim of the perp walk ever, nor, given paramilitary policing and “no knock” raids, is the perp walk the most abusive police/prosecutorial practice out there. But it’s at best a pointless indignity, and at worst a threat to due process—which is why it should be reined in. For Cato work on police tactics and misconduct, go here; and also see Reason’s recent “criminal justice” issue.

People in the D.C. area maye be familiar with the tragic tale of Fairfax teacher Sean Lanigan, who was falsely accused of sexual molestation, resulting in termination and a destroyed reputation. As pointed out by friend of Cato and Cato Supreme Court Review contributor Hans Bader, however, the Department of Education is pushing a policy that would allow for more Sean Lanigans, even in cases not involving anything close to rape or molestation:

If the U.S. Department of Education’s Office for Civil Rights has its way, more teachers like him will end up being fired even if they are acquitted by a jury of any wrongdoing. It sent a letter to school officials on April 4 ordering them to lower the burden of proof they use when determining whether students or staff are guilty of sexual harassment or sexual assault. According to the Department of Education’s demands, schools must find people guilty if there is a mere 51% chance that they are guilty – a so-called preponderance of the evidence standard. So if an accused is found not guilty under a higher burden of proof – like the “beyond a reasonable doubt” standard that applies in criminal cases – the accused will still be subject to disciplinary action under the lower burden of proof dictated by the Education Department.

As Wendy Kaminer explains, the DoE would also like to strip the accused of their right to cross-examination:

Campus investigations and hearings involving harassment or rape charges are notoriously devoid of concern for the rights of students accused; “kangaroo courts” are common, and OCR ‘s letter seems unlikely to remedy them. Students accused of harassment should not be allowed to confront (or directly question) their accusers, according to OCR, because cross-examination of a complainant “may be traumatic or intimidating.” (Again, elevating the feelings of a complainant over the rights of an alleged perpetrator, who may have been falsely accused, reflects a presumption of guilt.) Students may be represented by counsel in disciplinary proceedings, at the discretion of the school, but counsel is not required, even when students risk being found guilty of sexual assaults (felonies pursuant to state penal laws) under permissive standards of proof used in civil cases, standards mandated by OCR.

Now, it is undoubtedly extraordinarily difficult for a rape victim to face her attacker, but lowering the standards under which someone is judged for that crime and not allowing the accused to question his accuser opens the door to using accusation as a weapon, just as in Lanigan’s case or that of the Duke lacrosse team. Justice (what lawyers call “due process”) demands, among other things, that both accuser and accused have their day in court, and that there be a presumption of innocence. It is no more just for an innocent person to be smeared and forever tarnished – if not convicted and imprisoned – than it is to let a guilty man go free. Indeed, as Blackstone famously said, “Better that ten guilty persons escape than that one innocent suffer.”

California State University–Monterey policies state that sexual harassment “may range from sexual innuendoes made at inappropriate times, perhaps in the guise of humor, to coerced sexual relations.” UC Berkeley lists “humor and jokes about sex in general that make someone feel uncomfortable” as harassment. Alabama State University lists “behavior that causes discomfort, embarrassment or emotional distress” in its harassment codes. Iowa State University states that harassment “can range from unwelcome sexual flirtations and inappropriate put-downs of individual persons or classes of people to serious physical abuses such as sexual assault.”

This disconnect between basic principles of free speech and due process creates what Lukianoff calls “a perfect storm for rights violations”:

By making it clear that OCR would be aggressively pursuing harassment claims, by mandating extensive changes to many universities’ due process protections, but not requiring universities to adopt a uniform standard for harassment, OCR has supercharged the power of existing campus speech codes. OCR could have done our nation’s colleges a favor if it required universities to adopt a uniform definition of harassment in the same breath as it required them to aggressively police it.

FIRE has done heroic work in protecting student rights, so you should really read all of Lukianoff’s indictment of the new policy.

The Department of Education needs to rescind/clarify this mess. Speech is not a crime, but even the rights of those accused of crimes should not be subordinated to misplaced compassion or political correctness.

The representation of prisoners accused of capital crimes is unique in its difficulty – and in the consequences – when that representation is inadequate. Maples v. Thomas, which will be argued before the Supreme Court this fall, exposes some of the serious cracks in the system charged with representing indigent defendants in such cases.

Cato takes no position on the merits of the death penalty other than that the Constitution does not prohibit it and that our justice system is responsible for, at the very least, ensuring that prisoners receive fair notice of orders on which their lives depend. Both the courts and counsel failed Cory Maples here.

Maples was convicted of capital murder and sentenced to death for killing two companions. After a series of state court appeals which affirmed his conviction, Maples filed a petition for post-conviction relief, which was ultimately dismissed.

Maples never received notice of this deadline-triggering order because his pro bono lawyers left their big-firm jobs and a court clerk did nothing when the letter containing the order was consequently returned unopened. Because Maples did not receive notice of the deadline, he did not timely file an appeal and his claims were procedurally defaulted. The Eleventh Circuit affirmed the district court’s denial of Maples’s subsequent federal habeas petition because Maples “cannot establish cause for his default because there is no right to post-conviction counsel.”

Cato has now joined The Constitution Project to file an amicus brief supporting Maples and arguing that the Supreme Court should excuse his default because the state failed to notify him of an order that could result in his death. Moreover, if the default is not excused, the state’s inaction will deny Maples his constitutional right of meaningful access to the courts.

The Eleventh Circuit relied on the rule that because “there is no constitutional right to an attorney in state post-conviction proceedings, a petitioner cannot claim constitutionally ineffective counsel in such proceedings.” But Maples’s habeas claim does not involve the ineffectiveness of his post-conviction counsel; his underlying claim is that his trial counsel provided ineffective assistance. Indeed, his post-conviction counsel provided no assistance whatsoever when it was time to appeal.

Finally, there is cause to excuse Maples’s default because this case is ultimately governed by principles of equity and basic fairness. Few if any reasonable observers would conclude that it is fair or equitable to put a man to death without allowing the least consideration of appellate claims that could save his life simply because his lawyers left their jobs, a firm mailroom returned letters to them unopened, and the court clerk’s office did nothing when it discovered that crucial notice was never received.